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Google can’t cloak documents showing an ‘antiunion campaign,’ NLRB judge rules

It can’t claim attorney-client privilege on documents just because it CCs its attorneys on them

Judge rules Google has to turn over 180 documents in an NLRB case
Illustration by Alex Castro / The Verge

A judge appointed by the National Labor Relations Board has ruled that Google must turn over some 180 documents related to an internal campaign to fight union organizing efforts by employees. Dubbed Project Vivian, a Google attorney described the ongoing effort between 2018 and 2020 as a way to “engage employees more positively and convince them that unions suck,” according to one of the documents.

The documents are part of a case the NLRB brought against Google in December 2020, which alleged the internet giant violated US labor law by spying on and firing employees who were organizing protests and trying to unionize. Former Google employee Laurence Berland, fired in 2019, was organizing against the company’s hiring of IRI Consultants, a firm known for its union-busting efforts. He said he was fired for looking at other employees’ calendars, breaking a Google policy which the NLRB found to be unlawful. And former Google employee Kathryn Spiers said she was fired after she created a pop-up for Google employees who visited the IRI Consultants website. The company claimed Spiers had violated security policies, but the NLRB found that her firing was also unlawful.

Google tried to claim attorney-client privilege to shield some of the documents that were subpoenaed in the case. But administrative law Judge Paul Bogas said Google’s “broad assertion, is, to put it charitably, an overreach,” according to a January 7th order The Verge received following a Freedom of Information Act request. Bogas wrote in his ruling that IRI provided Google with “antiunion messaging and message amplification strategies” that were tailored to Google’s workforce, but IRI didn’t give Google legal advice that would be protected by attorney-client privilege.

He added that Google had CC’d its legal counsel on documents that would not be considered privileged otherwise, in what appeared to be an effort to try to keep the documents private. He said Google “cannot spin the mere fact of a nascent organizing effort among employees into ‘litigation’ — like straw spun into gold — that entitles it to cloak in privilege every aspect of its antiunion campaign.”

Google spokesperson Jennifer Rodstrom said in an email to The Verge that it considers the underlying case to be unrelated to unionization efforts, rather that “it’s about employees breaching clear security protocols to access confidential information and systems inappropriately.” She added that IRI was one of “dozens of outside consultants” Google works with.

If Google loses the case, it may be forced to pay back wages to Berland and Spiers and rehire them.